Minimally Viable Dad

The rights of sperm donors—who deserves to be called “daddy”?

I began thinking about having a child on my own after a very serious relationship broke up when I was 37, a critical time for my fertility. I considered every option. I talked to a friend about donating his sperm and I considered co-parenting with an ex-boyfriend. In the end, I decided to go with an “open identity” donor whose sperm I purchased through a bank. Open identity meant that my child could meet his biological “father” when he was 18, but not before.

“Now, widespread use of sperm donation is stretching that age-old question—“Who’s the father?”—onto an unfamiliar and often surprising frame. Our answers are beginning to show some casual biases about men’s attitudes towards parenting…”

My son is now one, so that day, should it come, is still 17 years off. That’s nearly a generation away, time enough for a child to come to terms with fast-changing definitions of fatherhood — not to mention motherhood, and, let’s face it, the whole idea of “family.”

Not so lucky are fathers and mothers who now find themselves caught between a shiny future of reproductive choices that would put Baskin Robbins to shame, and the perennially-late present — a cast whose ranks recently welcomed actor Jason Patric and his ex girlfriend, Danielle Schreiber.

It’s probably inevitable that sperm donor relationships will play out in every conceivable combination before laws and good sense catch up.

Patric and Schreiber were in an on-again-off again relationship. Along the way, Patric agreed to have his sperm bottled and frozen for Schreiber’s use sometime down the road. Then, during one of their off-again periods, Schreiber used the stored sperm to get pregnant through in vitro fertilization. Because they were no longer going out, she took the position that her former lover was not the legal father, but on par with any anonymous sperm donor. At the same time, she allowed Patric back into her life as a new mom, where sperm-dad promptly surprised himself by falling in love with the kid, but, once again, not the mother.

The couple couldn’t have tangled things more thoroughly if they’d planned it in advance. They’re now in a Battle Royale over custody that’s playing out in the tabloids, has attracted the attention of the California legislature and could lead to a controversial rewrite of sperm donors’ parental rights in the state.

At stake is what Silicon Valley executives might call the new definition of a “minimally viable dad.” Are we talking about a one shot feature, namely, sperm? Or do we need to consider a whole host of other attributes essential — emotional attachment, social acknowledgement, financial support — and take the biological protein as nice-to-have but not really necessary?

Looking at laws and practice, we actually seem to believe both, depending on the situation. As the Patric case shows, a deep rethink is overdue.

“Motherhood expands outward” while fatherhood is “a very abrupt aphoristic matter.” So declared communication theorist Marshall McLuhan on the occasion of his daughter’s wedding, concluding, “It’s just an aside.”

Such a statement today seems dated and, given the context, shockingly obtuse; but it likely wouldn’t have ruffled many generational feathers 50 years ago.

Now, widespread use of sperm donation is stretching that age-old question—“Who’s the father?”—onto an unfamiliar and often surprising frame. Our answers are beginning to show some casual biases about men’s attitudes towards parenting, with potentially important and divisive consequences for the reproductive rights of women and men alike.

Current California law says if a guy hands over his sperm to a doctor or fertilization bank to be used in assisted reproduction with a woman to whom he’s not married, then he automatically gives up his right to be called daddy.

When Schreiber and Patric’s son Gus was born, Patric spent time with the child even though the couple still couldn’t commit to one another. Not surprisingly he actually liked being Gus’s dad. But Schreiber didn’t want to give up her exclusive control, so Patric sued her claiming that because they were in an on-going relationship, and because he’s the biological father, that his emotional connection gave him the right to play the role of dad despite the method by which Gus was conceived. Schreiber won the case because California law states that if the mother chooses to give the biological donor a parental role, the relationship must be determined before conception, and if not, she has the sole right to decide the relationship between the donor and the child.

Patric appealed the decision, and the California state legislature is now reevaluating the legal status of the biological father, in the role of sperm donor, as just “an aside.”

State Senator Jerry Hill says he believes the law on sperm donation needs to be updated because of all the new configurations of family, such as single moms by choice and same sex couples. When the original law was written it was mostly infertile couples that were using sperm donors, a notion that’s long been outdated by actual practice. As a result, he’s sponsored a new bill that gives all men who have made the choice to donate outside of a sperm bank actual parental rights if they have an “on going relationship” with the child. The new bill also says that any donor who actually “receives the child into his home and holds the child out as his natural child” could be declared a legal parent.

The proposed changes have provoked a backlash from reproductive rights advocacy groups, who may worry that giving more sway to prospective fathers could make a complex situation even worse by opening the door to new and unwelcome participants in the child rearing process and upending the stability of post-nuclear families.

In short: Men have often been viewed as reluctant and unwilling parents under the law; what happens if a new generation steps up and demands more involvement in the lives of their offspring—regardless of the method of conception? And what counts as sufficient commitment to win not just the moral right to be called dad, but the legal status to back it up?

Hill’s measure has drawn a lot of criticism over the vagueness of the bill language from the likes of Planned Parenthood, adoption lawyers, and same sex couples and single moms who have conceived with known donors (meaning that the sperm that didn’t come from a sperm bank where the legal boundaries are clear). Phrases such as “on-going relationship” and “receives the child into his home” are hard to define in practice. What would this exactly mean? Would a few visits a year, or regular calls over Face Time, count?

The new bill is currently being held for further discussion.

As the mother of a one-year-old son conceived by a donor I found through a sperm bank, I have spent many years thinking about how advances in fertility technology and changes in social norms have opened up new choices for women and men when it comes to forming families, especially for women now that we have more economic power.

When I turned 41, I decided that I had the rest of my life to meet my husband, but maybe only a few precious months to have a biological child. So I decided to use the sperm donor, and low and behold, I got pregnant with my son a few months later. I decided to go this route because I didn’t want a known donor who would be a sort-of-father; someone who could swoop in and out on his own terms, or even my terms, but nonetheless not be 100 percent my child’s father.

I’ve come to believe fatherhood is defined by the emotional connection, physical affection, advisements and daily consistency of a man in a child’s life whom he calls Daddy. I don’t believe this relationship has to be biological, and if it is biological then I don’t believe that a donor, even if he has a connection with the child, should automatically be able to claim parental rights. There needs to be strong evidence of deep commitment. That’s hard to define in bright line bill language and is probably best left to a factual case-by-case examination.

Today, the traditional nuclear family accounts for only 25 percent of the population. The majority is now dominated by new configurations: two mothers and two fathers, loving step parents, committed non married couples, singles, and financially stable “Single Mothers by Choice” whose children are created with sperm donors or through co-parenting agreements, some who even met on-line through match-making websites. I have a single mom friend who is raising her son with two gay men, a couple. The child calls them Papa and Dada.

The mom calls the new family configuration “Open Source Family.”

“Open Source companies are focused on sharing information and are more collaborative,” she said. “I decided to apply the idea to families and baby-making.” The idea is that families are no longer the traditional closed fiefdom of the nuclear family connected through biology, but rather an open community with a variety of emotional and biological connections that hold them together.

Regardless of where such lines are drawn, it’s time to declare that sperm alone does not qualify anyone as a “minimally viable dad.”

This cuts in more ways than one. I know financially stable single moms by choice who have gotten pregnant “by accident” on one nights stands and then used the law to force child support on a reluctant dad. I believe that thinking relies on an outdated definition of “minimally viable dad” that equates sperm with fatherhood. As with sperm donor paternity, these disputes can and should be judged on a case-by-case basis rather than a blind rule.

Such laws were created because historically it was important for women to have husbands for economic support and to avoid the social stigma of an illegitimate child. Women now can make money, they don’t necessarily need husbands, and the word “illegitimate” is about as outdated as the word spinster. In a recent blog in The New York Times entitled “Is Forced Fatherhood Fair? Laurie Shrage asks “Do men now have less reproductive autonomy than women? Should men have more control over when and how they become parents, as many women now do?” I would say that if a woman traps a guy into getting her pregnant it’s up for debate as to whether he should automatically have to support that child.

“Our laws reflect our growing confusion, and need to come up to date with evolving attitudes.”

Patric’s case is especially interesting because his is the expression of an evolved man who has discovered his emotional attachment and fatherhood instincts and actually wants to support his child.

More typically, conflicts arise because the guy is not interested in playing the role of dad and flies the coop. Patric’s is the new story of fatherhood. Increasingly men, despite their commitment fears, are finding deep meaning in their relationships with their children, a scenario that some 1950s dads might well have found uncomfortable or emasculating.

Our laws reflect our growing confusion, and need to come up to date with evolving attitudes. In some cases, establishing paternity is currently all that is required to attain legal status and financial support from the father, regardless of the emotional commitment or engagement of any kind. Conversely, for sperm donors, whether or not there is some kind of connection or emotional commitment, fatherhood is rarely legally acknowledged.

I very consciously chose not to use a known donor because of the potential legal ramifications, but more important because of the emotional ones.

I decided to conceive with a donor whom my child could meet someday to inevitability satisfy his curiosity about his genetic origins, but I didn’t want to confuse him with a minimally viable dad who he couldn’t necessarily call dad.

In an age when fatherhood is growing in emotional depth, and there are myriad and nuanced configurations of modern “open source” families, I can understand why Jason Patick is fighting the law, and also why the government is stepping into to try to more clearly define our new choices.